MAKBUL Vs. DINABANDHU GAJENDRA MOHAPATRA

JUDGEMENT

(1.) THIS appeal arises out of a suit for a declaration of the plaintiff's occupancy right in 2.36 acres and 7 kadis of land appurtaining to Current Settlement Plot No. 1725, of touzi No. 1434 in Mouza Ratalang. The land was formed by gradual accretions from the bed of the river Knar -Kadi during the last fifteen years and it was found fit for cultivation about five years ago. Plot No. 1725 is recorded as Anabadi river belonging to the landlord, defendant 11. It is admitted that the plaintiff owns his occupancy holdings on the bank of the river and they are recorded as plots Nos. 1725/2548, 1725/2559 and 1729. These plots adjoin the newly formed land to the south, and consequently the accretions from the river bed to the plaintiff's plots are being enjoyed by the plaintiff as a part of his occupancy holdings. In the year 1945, defendants 1 to 10 claiming to be lessees from defendant 11, disturbed the possession of the plaintiff and that gave rise to this litigation. The defendants contended: firstly that as the land had been formed out of the Kharkadi Nala which is the private property of the zamindar the accretion belonged to the zamindar; and secondly that he was in possession through his transferees. Both the Courts below have come to concurrent findings in favour of the plaintiff. They have held that the plaintiff is entitled to the accreted lands as an increment to his tenure under Clause (1) of Section 4 of Bengal Regulation No. 11 of 1825, and that neither the zamindar nor his transferees were ever in possession of the land.

(2.) THE admitted facts are that the river bed which has thrown up the disputed land belongs to the zamindar and that the land has been so formed as to form part and parcel of the existing lands of the plaintiff - -the gradual silting up of the river bed has resulted in the emergence of an enlarged area of the plaintiff's holding. It is accordingly contended that the law laid down in Bengal Regulation No. 11 of 1825 entitles him to retain possession of the newly formed land as an accretion or increment to his tenure. On the side of the landlord it is contended that Clause (1) of Section 4 of the Regulation, on which the plaintiff relies, applies only to a river bed which formed the property of the Crown and not to rivers which are the private property of a zamindar and that Clause (4) of that Section would apply to the latter class of cases. In other words it is contended that the application of Clause (1) of Section 4 should be limited to public rivers which are the property of the State and should not be extended to private rivers. The question is which of the two rival contentions is correct.

(3.) THE foundation for the contention on behalf of the appellant -landlord is a passage occurring in the judgment of the Judicial Committee in - - 'Lopez v. Muddun Mohun Thakur',13 Moo Ind App 467, at p. 475. That was acase between two proprietors holding estateson either side of the banks of a river. Theplaintiff was the proprietor of a considerableestate on the bank of the Ganges, which byencroachment, wholly submerged that estate.After the lapse of some years the water ultimately retired and new land was formed onthe soil which was formerly the plaintiff's. Thisnew land was formed adjoining the property ofthe defendant. The defendant, therefore, claimed it as an accretion to his property underSection 4 of the Regulation. Their Lordships of theJudicial Committee held that there was nothingin the Regulation to warrant the inference thatone proprietor could claim confiscation of property belonging to another. Passage which hasgiven rise to a difference of opinion is as follows : 'In truth, when the whole words are lookedat, not merely of that clause but of the wholeRegulation, it is quite obvious that what thethen Legislative authority was dealing withwas the gain which an individual proprietormight make in this way from that which waspart of the public territory, a public domainnot usable in the ordinary sense that is tosay, the sea belonging to the State or a public river belonging to the State. This was agift to an individual whose estate lay upona river or lay upon the sea, a gift to him ofthat which, by accretion, because valuableand usable, out of that which was in a stateof nature neither valuable nor usable.' The principle deducible from this is that ifthe ownership of the submerged site remainedas it was, a deposit of alluvium directly uponit may as well be an accretion and vertical accession to the site, as it might be a longitudinalaccession to the river frontage of the adjoiningproperty. It will be noticed that their Lordships were discussing the rights of a proprietorto an accretion formed out of public territory.If, therefore, an accretion is formed eitherlongitudinally or vertically from a public riveror the sea, on the land of a proprietor, he canclaim it as an increment to his tenure asagainst the Crown provided the original site isidentifiable. This case does not lay down thata tenant also cannot similarly claim an accretion to his tenure from a river bed, the property of his landlord. Bengal Regulation 11 of1825 would, in terms, equally apply to the casesof subordinate tenures of whatever description.There is nothing in it to indicate that its application should be restricted to public rivers, andthe observations of their Lordships must beread in the context of the facts of that case.They do not purport to apply to all rivers. This was the view taken in the Full Bench decision reported in - - 'Khubi Mahaton v. Lachmi Das'. 2 Pat 18, a case between a tenant and his landlord. Sir Dawson -Miller. ChiefJustice, held that the section applied in all cases where the tenant claimed as an increment to Ms tenure lands gained by gradual accretion from the recess of the river, the property of his landlord, and that that section was not confined to lands which are the property of the State. Mullick J., observed that Clause (1) of Section 4 deals with rivers of all classes and is subject to ho words of limitation for restriction. Jwala Prasad J., also agreed that Clause (1) of Section 4 deals with lands gained by gradual accretion from the recess of all kinds of rivers or the sea. In a later case decided by the same High Court, reported in - - 'Bishun Deo v. Hem Narain', AIR 1947 Pat 193, the same principle was applied and it was held that the recognition of the tenant's right to claim the land gained by alluvial action does not amount to confiscation of the proprietor's right to the bed of the river and that he is entitled to claim the land under Clause (1) of Section 4. The principle that has been well established, therefore, appears to be this. If the property belonging to a proprietor is lost by submersion or diluvian by the action of the river and new land is reformed on that site the land thus formed belongs to the proprietor to whom the site belonged, and Regulation 11 of 1825 does not warrant its confiscation by a neighbouring proprietor to whose land it may be attached. The latest decision on this question is the Privy Council case reported in - -'Maharaja of. Dumraon v. Secretary of State', 54 Ind App 156. The reason of the rule, as I understand these decisions, is that the land washed away and afterwards reformed on the old site cannot be described as land 'gained by gradual accession' - - the incummentum latens of the civil law. The Regulation does not apply to cases where the land has been lost to the original proprietor by the encroachment of the sea or of the river, and which after diluvion reappears on the recession of the sea or of the river, as there is no express provision taking away or destroying the right of the original proprietor in such cases. In such cases the ownership of the land covered by water remains unaffected and the law makes no difference between land covered by water & land covered by crops, provided the ownership of the land can be ascertained. But if new land is formed by gradual throwing up of silt by a river on the land of a person and that person's land gains by the accretion an increment to his existing land, he can retain the increase as a part of his existing land, irrespective of whether the river is public or private.